United States v. Souza
Decision Date | 18 April 2014 |
Docket Number | No. 12–1949.,12–1949. |
Citation | 749 F.3d 74 |
Parties | UNITED STATES of America, Appellee, v. Richard SOUZA, Defendant, Appellant. |
Court | U.S. Court of Appeals — First Circuit |
OPINION TEXT STARTS HERE
Rebecca A. Jacobstein, with whom Office of Appellate Advocacy was on brief, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney was on brief, for appellee.
Before HOWARD, RIPPLE,* and THOMPSON, Circuit Judges.
Richard Souza appeals from his conviction and sentence for structuring financial transactions to evade reporting requirements. We affirm.
In 2004, Souza was hired to repair the roof of Lawrence Burtchaell, an elderly widower. The two developed a close relationship and soon Souza was spending several days a week at Burtchaell's home.
During this time period, Burtchaell's acquaintances began noticing symptoms of mental decline. Usually well dressed, Burtchaell began looking disheveled. He also had difficulty remembering neighbors' names, he would get lost walking around the neighborhood, and one time he flooded his house because he forgot to turn off the bath. Burtchaell's diminishing mental capacity was also detected by his investment advisor, Mark Friese, who registered concern with his manager.
In 2006, Souza persuaded Burtchaell to put up money to purchase real estate in Maine. Souza told Burtchaell and Friese that Burtchaell was a partner in the investment, but revealed neither that the other partners were Souza's sons, nor that Burtchaell was providing all of the purchase money. Though Souza promised that in a few weeks Burtchaell would recoup his money with interest, Burtchaell never saw any return on the investment.
After closing the deal, Burtchaell took out an $89,000 loan on the property and wired almost all of the proceeds to Souza's account with Sovereign Bank. In the following months, Souza withdrew all of these funds, always in increments of less than $10,000. For instance, on June 15, 2006, within a period of an hour and a half, Souza withdrew $54,000 in six separate installments of $9000 at five different Sovereign branches.
Banks are required to file a report when an individual withdraws $10,000 or more. 31 U.S.C. § 5313(a); 31 C.F.R. § 1010.311. For purposes of reporting, banks aggregate an individual's daily transactions across all branches. 31 C.F.R. § 1010.313(b). Thus, Sovereign treated Souza's six June 15 withdrawals as one $54,000 withdrawal and filed a report.
Souza was charged with structuring his June 15 transactions for the purpose of evading the reporting requirements, in violation of 31 U.S.C. § 5324(a)(3). Souza claimed that he had been forced to make multiple withdrawals of $9000 because each Sovereign branch ran out of money. To rebut this claim and to show Souza's intent to evade the reporting requirements, the government presented evidence of the Maine transaction, arguing that Souza wished to avoid drawing attention to his withdrawals because they were composed of ill-gotten funds. Souza was convicted and sentenced. He appeals.
Souza claims violations of his rights to a speedy trial, to effective assistance of counsel, and to due process. He also argues that the district court made erroneous evidentiary rulings and sentencing errors. None of these arguments is persuasive.
Souza contends that he was denied his speedy trial right. That right derives from two sources: the Speedy Trial Act (STA), 18 U.S.C. §§ 3161–74, and the Sixth Amendment.
The STA places time limits on two periods in criminal proceedings: the period between arrest and indictment, and the period between indictment and trial. Id. § 3161(b)-(c). In computing the amount of time that has elapsed during these periods, the STA permits courts to exclude certain intervals. Id. § 3161(h).
Souza alleges STA violations in both periods. We review STA challenges de novo as to legal rulings and for clear error as to factual findings. United States v. Valdivia, 680 F.3d 33, 38 (1st Cir.), cert. denied,––– U.S. ––––, 133 S.Ct. 565, 184 L.Ed.2d 368 (2012). Overall, however, we review for abuse of discretion decisions to exclude intervals of time from the STA count. United States v. Gates, 709 F.3d 58, 64 (1st Cir.), cert. denied,––– U.S. ––––, 134 S.Ct. 264, 187 L.Ed.2d 193 (2013).
The STA calls for indictment no later than thirty days after arrest. 18 U.S.C. § 3161(b). Souza was arrested on August 12, 2010 and was indicted on September 30. He argues that only fourteen of these forty-nine days are excludable, leaving thirty-five days—five more than the STA permits. Although “delay resulting from any pretrial motion” is excludable, id. § 3161(h)(1)(D), including up to thirty days “during which any proceeding concerning the defendant is actually under advisement by the court,” id. § 3161(h)(1)(H), Souza claims that no excludable time resulted from a joint motion filed by the parties on August 20. He makes three points, none of which is availing.
First, Souza argues that the joint motion, which sought “enlargement of time” to obtain an indictment, requested relief that the court was incapable of granting. Souza did not make this argument to the district court. Even if he had, while it is true that courts cannot “enlarge” the time limits established by the STA, courts can “exclude” certain periods in the interest of justice, see id. § 3161(h)(7)(A), and the joint motion, was functionally equivalent to an anticipatory motion to exclude time. Souza does not and could not contend that the purely semantic difference prejudiced the proceedings in any way.
Second, Souza contends that the exclusion of time sought by the joint motion was not in the interest of justice. But it is irrelevant whether the motion's reasons for seeking exclusion had merit: time was excludable not because the court granted the joint motion, but because the court had the motion under advisement.
Third, Souza asserts that the toll that stops the clock while a court considers a pretrial motion should not apply when the motion seeks a continuance. Otherwise, says Souza, a party intent on excluding time could obtain that result simply by filing a motion. But in United States v. Richardson, we rejected this argument and held that a motion to continue can toll the speedy trial clock. 421 F.3d 17, 31 (1st Cir.2005).
Of course, as we cautioned in Richardson, “neither counsel nor district courts may employ measures for excluding time from the speedy trial clock that impermissibly frustrate the STA's purpose of protecting the shared interest of criminal defendants and the public in ‘bringing criminal charges to the bar of justice as promptly as practicable.’ ” Id. at 29 (quoting United States v. Hastings, 847 F.2d 920, 923 (1st Cir.1988)). As was true of the motion to continue in Richardson, the joint motion here “was not filed as a pretext to avoid the consequences of an STA violation, but was filed for the legitimate purpose of seeking a continuance in the interest of justice.” Id. Counsel for both Souza and the government sought the continuance to carry on preexisting plea negotiations and because each had a long-standing vacation planned. Since we have expressly left open the issue whether periods of plea negotiation can properly be excluded, United States v. Scantleberry–Frank, 158 F.3d 612, 615 (1st Cir.1998), a motion to continue made on that basis, while not guaranteed to succeed, will not be deemed pretextual on that ground alone. Similarly, because we have held that “[a] reasonable vacation constitutes a plausible basis for excluding a relatively brief period of time,” Gates, 709 F.3d at 67, a motion to continue made on that basis is also not necessarily pretextual.
Nor does the fact that Souza objected to the joint motion render it pretextual. After all, “defense counsel has the power to seek an STA continuance without first informing his client or obtaining his client's personal consent.” Id. at 66. Souza's objection is merely “a datum for the district court to consider in its analysis of the ends of justice,” and must be measured in light of both attorneys' legitimate reasons for requesting a continuance. Id.
Because the STA permits a court to exclude up to thirty days while a motion is under advisement, 18 U.S.C. § 3161(h)(1)(D), (H), the joint motion tolled the speedy trial clock beginning on August 20 and continuing through September 19. This exclusion reduces the counted number of days between the August 12 arrest and the September 30 indictment below thirty, and therefore within the limits of the STA.
The STA calls for trial no later than seventy days after indictment. 18 U.S.C. § 3161(c)(1). Souza was indicted on September 30, 2010 and his trial began on February 27, 2012. He argues that only 201 of these 515 days were excludable, leaving 314 days—244 more than the STA permits.
“[E]xclusions of time not specifically challenged in a motion to dismiss are deemed waived.” Gates, 709 F.3d at 68 (emphasis added). Souza did not file a motion to dismiss challenging specific intervals in the pretrial period. Instead, through pro se filings, he protested generally about delay. On appeal, he avers that these general protestations were meant to convey that there were no excludable intervals anywhere in the pretrial period. This mischaracterizes his filings, which comprised vague complaints of delay and accusations against the court, the government, and his attorneys for colluding to impair his speedy trial right. Even when viewed as charitably to Souza as possible, his assertions did not in any event challenge exclusions of time during the pretrial period, thus waiving such challenges on appeal.1
Souza also contends that the delay between his arrest and trial violated the Sixth Amendment's guarantee of a speedy trial. We review the district court's Sixth Amendment ...
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